66 Neb. 121 | Neb. | 1902
This action was brought on a policy of insurance against loss by fire to recover for the loss of a building thereby insured. The policy contains, among other provisions, the following: “If there is any change in the occupant or occupancy of the premises insured, or if the buildings insured, or either of them, become vacant, * * * this policy shall be void.” The defendant, among other defenses, pleaded a breach of the foregoing provision. The plaintiff in her reply admitted the breach, but in avoidance thereof alleged a waiver. At the conclusion of the testimony the court directed a verdict for the defendant, and entered judgment accordingly. The plaintiff brings the case here on error.
The principal contention arises over the effect to be given to one of the conditions of the policy, which reads
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
The following opinion on rehearing was filed on October 22,1902. Judgment of district court reversed:
Commissioner’s opinion, Department Ho. 2.
The policy sued on in this case contains the following condition: “If there is any change in the occupant or occupancy of the premises insured, or if the buildings insured, or either of them, become vacant, * * * . this policy shall be void.” There is a further proviso that “no officer, agent or representative of this company shall be held to have waived any of tlie terms or conditions of this policy, unless such waiver shall he indorsed hereon in writing.” The defendant, relying upon these provisions of the policy, pleads three grounds of forfeiture: That the property ivas insured as a dwelling-house, occupied and to be occupied by the owner as a residence, and did not-continue so to be occupied, but there was a change of occupancy from the owner to a tenant; that the property remained vacant for some ten days at the time of the change of occupancy ; and that it was again vacant at the time of the fire. These isolations of the conditions of the policy are alleged to have taken place without the consent of the defendant indorsed upon the policy, as required by its
It is contended that a verdict was directed properly because the property was vacant at the time of the fire, contrary to the conditions of the policy. But there was some dispute as to whether the tenant had removed all his effects; and whether, under the circumstances, there was a vacancy, or a mere temporary cessation of occupancy until the tenant was fully removed and some one else could be put in, was a question for the jury. German-American Ins. Co. v. Buckstaff, 38 Nebr., 135; Liverpool & London & Globe Ins. Co. v. Buckstaff,
By tbe Court: For the reasons stated in the foregoing opinion, the former judgment of this court herein is vacated, the judgment of the district court is reversed, and the cause remanded for a new trial.
Reversed and remanded.
Note. — Fire Insurance. — Dwelling-Souse.—Occupancy. Occupancy in reference to a dwelling-house, means actual use of tire premises by human beings as their customary place of abode. Burner v. German-American Ins. Co., 27 Ins. L. J., 732, 733, 103 Ky., 370, 373; Joyce, Insurance, 2225; May, Insurance, 249a. — W. F. B.
41 Am. St. Rep., 724.